Citation Nr: 0416714
Decision Date: 06/25/04 Archive Date: 06/30/04
DOCKET NO. 96-41 829 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a back disorder.
2. Entitlement to service connection for residuals of a
right hand injury.
3. Entitlement to an initial evaluation in excess of 10
percent for residuals of a left elbow fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and appellant's spouse
ATTORNEY FOR THE BOARD
W. Sampson, Counsel
INTRODUCTION
The veteran had active duty from November 1960 to January
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied service connection for a low back
condition, residuals of a right hand injury, bilateral
hearing loss and tinnitus. Thereafter in a November 1997
rating decision, the RO granted service connection for
bilateral hearing loss and tinnitus, ending that appeal. See
Holland v. Gober, 10 Vet. App. 433 (1997) (per curiam);
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v.
Gober, 122 F.3d 1030 (Fed. Cir. 1997).
Also in the April 1996 rating decision, the RO granted
service connection for residuals of a left elbow fracture and
a zero (noncompensable) rating was assigned. The veteran
disagreed with the level of disability assigned. In January
2003, the RO increased this evaluation to 10 percent,
effective the date of the veteran's claim. As this was not
the maximum evaluation possible, and the veteran continues to
maintain disagreement, this issue remains on appeal. See
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (citing AB
v. Brown, 6 Vet. App. 35, 38 (1993)).
The issue of entitlement to service connection for a back
disorder is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The RO has satisfied its duty to notify and assist the
veteran, and has obtained all relevant evidence necessary for
the equitable disposition of the veteran's appeal.
2. Any injury to the veteran's right hand in service was
acute and transitory and completely resolved at separation.
3. The competent medical evidence does not relate a right
hand disorder to the veteran's active service or any incident
of service.
4. The veteran's service-connected disability, residuals of
a left elbow fracture, is manifested by pain on limitation of
motion without X-ray evidence of degenerative changes.
CONCLUSIONS OF LAW
1. A right hand injury was not incurred in service. 38
U.S.C.A. §§ 1110, 5107, 38 C.F.R. § 3.303 (2002).
2. The criteria for an increased initial evaluation for
residuals of a left elbow fracture have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2,
4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Code 5206
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed.
Cir. 2002) (holding that only section four of the VCAA,
amending 38 U.S.C. § 5107, was intended to have retroactive
effect).
The final rule implementing the VCAA was published on August
29, 2001, see 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001),
and is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2003). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date.
In this case, VA's duties have been fulfilled to the extent
possible. First, VA must notify the veteran of evidence and
information necessary to substantiate his claims.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
veteran has been notified of the information necessary to
substantiate his claims for service connection for residuals
of a right hand injury and for increased rating for residuals
of a left elbow fracture in the April 1996 rating decision,
the July 1996 statement of the case (SOC), and November 1997,
January 2003 and January 2004 supplemental statements of the
case (SSOC) as well as an April 2002 letter informing him of
the provisions of the VCAA. In the April 2002 letter, the
veteran was informed that to establish service connection for
his residuals of a right hand injury, he would have to show
an injury in military service or an event in service causing
injury or disease, a current physical disability, and a
relationship between his current disability and an injury,
disease or event in service. In the July 1996 SOC, VA
informed the veteran that evidence needed to substantiate his
claim for an increased rating for his residuals of a left
elbow fracture would be evidence tending to show that he met
the criteria for the next higher rating. Specifically, he
would have to show greater limitation of flexion or extension
of the forearm, ankylosis, flail joint, impairment or
nonunion of the radius or ulna, or impairment of supination
or pronation.
Second, in the same notice, VA must inform the veteran of
which information and evidence he was to provide to VA and
which information and evidence VA would attempt to obtain on
his behalf. In the April 2002 letter and the January 2003
SSOC, VA informed the veteran that it must make reasonable
efforts to assist a veteran in obtaining all evidence
necessary to substantiate a claim, such as medical records,
employment records, or records from other federal agencies.
VA further informed the veteran that as long as he provided
enough information about these records, VA would assist in
obtaining them, but noted that he had the ultimate
responsibility to make sure that these records were received
by VA. VA also told him that it would assist him by
providing a medical examination or obtaining a medical
opinion if it decided that such was necessary to make a
decision on his claim. VA asked the veteran to tell it about
any additional information or evidence that he wanted VA to
try to get for him.
Third, VA must make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. §§ 3.159(c),
(d) (2003). Here, the VA did obtain the service medical
records, and reasonable attempts were made to obtain all
records of the veteran's postservice treatment identified by
the veteran. All VA treatment records available have been
obtained and associated with the claims file. Private
treatment records were obtained. The veteran also identified
private treatment from Grady Memorial Hospital which VA
contacted. In February 1996, Grady Memorial notified VA that
it was unable to release the records using the standard
release form supplied by VA. VA informed the veteran that he
would need to submit a new release or obtain the records
directly. He has not responded to VA's request. VA cannot
assist the veteran further in this regard without his
cooperation. "If a veteran wishes help, he cannot passively
wait for it in those circumstances where he may or should
have information that is essential in obtaining the putative
evidence." Dusek v. Derwinski, 2 Vet. App. 522 (quoting Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991)). Additionally, in
connection with the duty to assist, VA provided compensation
and pension examinations in July 1997, September 2003 and
November 2003. The veteran provided personal testimony in a
hearing before a hearing officer at the RO, and was offered
the opportunity to provide testimony in a personal hearing
before the Board, however he declined.
The Board notes that in a decision promulgated on September
22, 2003, Paralyzed Veterans of America (PVA) v. Secretary of
Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§
5103(b)(1). The Federal Circuit made a conclusion similar to
the one reached in Disabled Am. Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003). The
Federal Circuit found that the 30-day period provided in §
3.159(b)(1) to respond to a VCAA duty to notify is misleading
and detrimental to claimants whose claims are prematurely
denied short of the statutory one-year period provided for
response. However, the recently enacted Veterans Benefits
Act of 2003 permits VA to adjudicate a claim within a year of
receipt of the claim. The provision is retroactive to the
date of the VCAA, November 9, 2000. See Veterans Benefits
Act of 2003, Pub. L. No. 108- 183, § 707(b), 117 Stat. 2651,
2673) (Dec. 2003).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412
(2004) held, in part, that a VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In this case, the
initial AOJ decision was made prior to November 9, 2000, the
date the VCAA was enacted. VA believes that this decision is
incorrect as it applies to cases where the initial AOJ
decision was made prior to the enactment of the VCAA and is
pursuing further judicial review on this matter. However,
assuming solely for the sake of argument and without
conceding the correctness of Pelegrini, the Board finds that
any defect with respect to the VCAA notice requirement in
this case was harmless error for the reasons specified below.
In the present case, regarding the issues of service
connection for residuals of a right hand injury and increased
rating for residuals of a left elbow fracture, a
substantially complete application was received in January
1996. Thereafter, service connection for residuals of a
right hand injury was denied in an April 1996 rating
decision, and granted for residuals of a left elbow fracture;
however, the veteran disagreed with the level of disability
assigned. Only after that rating action was promulgated did
VA, in April 2002 and January 2004 provide notice to the
claimant regarding what information and evidence is needed to
substantiate the claims for service connection and increased
evaluation, as well as what information and evidence must be
submitted by the claimant, what information and evidence will
be obtained by VA, and the need for the claimant to submit
any evidence in his or her possession that pertains to the
claim.
Because the VCAA notice in this case was not provided to the
appellant prior to the initial AOJ adjudication denying the
claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. While the Court did not address whether, and, if
so, how, the Secretary can properly cure a defect in the
timing of the notice, it did leave open the possibility that
a notice error of this kind may be non-prejudicial to a
claimant.
The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable AOJ determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him or her to overcome an adverse decision, as well
as substantially impair the orderly sequence of claims
development and adjudication. Pelegrini, at 422. On the
other hand, the Court acknowledged that the Secretary could
show that the lack of a pre-AOJ decision notice was not
prejudicial to the appellant. Id. ("The Secretary has
failed to demonstrate that, in this case, lack of such a pre-
AOJ-decision notice was not prejudicial to the appellant.")
In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of
a notice error being found to be non-prejudicial to a
claimant. To find otherwise would require the Board to
remand every case for the purpose of having the AOJ provide a
pre-initial adjudication notice. The only way the AOJ could
provide such a notice, however, would be to vacate all prior
adjudications, as well as to nullify the notice of
disagreement and substantive appeal that were filed by the
appellant to perfect the appeal to the Board. This would be
an absurd result, and as such it is not a reasonable
construction of section 5103(a). There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court, otherwise it would not have taken "due account
of the rule of prejudicial error" in reviewing the Board's
decision. See 38 U.S.C. § 7261(b)(2); see also Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004) (There is no
implicit exemption for the notice requirements contained in
38 U.S.C. § 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Court shall "take due
account of the rule of prejudicial error.")
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R.
§ 20.1104. There simply is no "adverse determination," as
discussed by the Court in Pelegrini, for the appellant to
overcome. See Pelegrini, at 421. Similarly, a claimant is
not compelled under 38 U.S.C. § 5108 to proffer new and
material evidence simply because an AOJ decision is appealed
to the Board. Rather, it is only after a decision of either
the AOJ or the Board becomes final that a claimant has to
surmount the reopening hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the appellant on April 2002 and
January 2003 was not given prior to the first AOJ
adjudication of the claim, the content of the notice fully
complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b). After the notice was provided, the
case was readjudicated and a Supplemental Statement of the
Case (SSOC) was provided to the appellant. The claimant has
been provided with every opportunity to submit evidence and
argument in support of his or her claim, and to respond to VA
notices. Therefore, not withstanding Pelegrini, to decide
the appeal would not be prejudicial error to the claimant.
The Court further held in Pelegrini that a VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1).
In this case, although the VCAA notice letter in April 2002
that was provided to the appellant does not contain the
"fourth element," the Board finds that the appellant was
otherwise fully notified of the need to give to VA any
evidence pertaining to his claim. In numerous communications
with the VA, the veteran was repeatedly put on notice as to
the need for any available evidence to be received by VA and
associated with the claims file, whether the evidence was in
his possession, obtained by him, or obtained by VA.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any error in not providing a single
notice to the appellant covering all content requirements is
harmless error. Any failure to adhere to the requirements of
the VCAA has not resulted in any detriment to the appellant's
claim. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Decision
Factual Background
On examination at entry into service in November 1960, the
only abnormality noted was a history of rheumatic fever, some
skin marks, and the veteran reported that he was in good
health. A December 1961 treatment record shows that he fell
from a motorcycle, sustaining an injury to his left elbow
which was thought to be a chip fracture of the left radial
head. It was uncertain following X-ray examination whether a
fracture existed or not. A month later on follow-up
examination, he was noted to be clinically asymptomatic. On
re-enlistment examination in February 1962, the upper
extremities were noted as "normal." A June 1963 X-ray
examination report of the right hand was noted to be negative
without any accompanying record of treatment or complaint
regarding the right hand. In April 1966, the veteran was
thrown from his motorcycle after hitting a hole while riding
in the desert, landing on his left hip. The assessment was
possible left sacroiliac sprain with physical findings noted
to be limited to the back. In December 1967, the veteran
sustained another motorcycle injury. The diagnoses included
abrasions to the left elbow and right hand. X-ray
examination showed a chip on the radial head. On examination
at separation in January 1968, physical examination of the
upper extremities was noted as "normal."
In an April 1974 claim for service connection, the veteran
claimed that he broke his right hand in 1963 while on active
duty. With his claim, he submitted four color slides. These
slides show a sailor apparently aboard a ship with a cast on
his right hand and forearm. A VA examination was scheduled,
for which he failed to appear, and his claim was denied in a
June 1974 letter which was returned to the RO marked,
"[m]oved, left no address." In January 1996, the veteran
filed another claim for injury to his right hand.
In April 1997, the veteran testified in a personal hearing
that he had pain and loss of motion in his left elbow. He
also testified that he broke the little finger in his right
hand during service when a hatch fell on his hand. He stated
that his hand was in a cast for six weeks, and that
approximately six months later he broke it again and it was
in another cast.
On VA examination of the joints in July 1997, the veteran
described an injury to his left elbow in a motorcycle
accident in 1967. He stated that his left elbow still locked
from time to time, and constantly ached. He took ibuprofen
to reduce the pain, but could do no lifting with his left
elbow. On examination, there was no gross swelling over the
joints and on inspection there were no deformities on the
elbows or shoulders. Range of motion of the left elbow
showed flexion of 130 degrees, supination 70 degrees,
pronation 70 degrees. VA X-ray examination of the left elbow
in July 1997 showed no evidence of bony or joint
abnormalities. The diagnosis was residuals of left elbow
injury. There was also no evidence of bony or joint
abnormalities noted on X-ray examination of the right hand.
In an April 2001 annual examination at the VA clinic, the
veteran complained of numbness of the right fourth and fifth
fingers for the past 2 months. On examination, there was no
atrophy, flexion of the fourth and fifth fingers was weak,
and there was numbness noted on the ulna nerve distribution.
In an October 2002 VA examination of the joints, the medical
records were reviewed. The veteran complained of almost
constant pain in the left elbow joint. He reported periodic
swelling and a popping sensation on flexion and extension.
Currently, he took aspirin, and reported increased pain with
any fluctuation in temperature. The veteran was employed as
a machinist and stated that he had increasing difficulty with
handling small parts due to a decrease in range of motion.
On physical examination, the veteran was right handed.
Active flexion of the left elbow was to 90 degrees, passive
flexion to 120 degrees. There was some tenderness over the
lateral epicondyle. Palmar rotation was to 90 degrees and
there was some pain over the radial head when pressure was
applied when the forearm was rotated. There was full range
of motion of the wrist joints. The veteran reported pain in
the elbow when extending the arm forcibly against resistance.
X-ray examination was negative for any type of bony
degeneration. The diagnosis was status post fracture of the
left elbow, residuals manifesting as a chronic ache in the
joint with decrease in the forearm range of motion and
strength, gradually worsening with time.
In a September 2003 VA examination, the veteran related a
history of injury to the right hand when a hatch fell on his
hand in service. He stated that he had been having pain ever
since. On X-ray examination, there was a fracture of the
right hand through the neck of the fifth metacarpal of
indeterminate age radiographically. The examiner stated that
in his opinion, the hand injury was more likely due to
service connected injuries in service. This examination was
returned as inadequate as there was no indication that the
medical records had been reviewed by the examiner, and the
opinion expressed was based solely on the history as reported
by the veteran.
In December 2003, the veteran was reexamined and the examiner
noted that the military medical records were carefully
reviewed. On physical examination, the right hand appeared
grossly swollen overall, but not acutely so. There was a
palpable fracture deformity of the right fifth metacarpal.
X-ray examination showed a fracture through the neck of the
fifth metacarpal. The final diagnosis was status post
fracture of the right fifth metacarpal with subsequent
degenerative changes. The examiner noted that this was not
well documented in the medical records and service connection
would be based solely on the veteran's statements.
A. Service Connection for a Right Hand Condition
Legal Criteria
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2002).
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38
C.F.R. § 3.303(a).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Analysis
As an initial matter, the Board notes that it is not alleged
nor does the evidence show that the veteran engaged in combat
with the enemy, although he did serve during a period of war.
As such, the provisions of 38 U.S.C.A. § 1154(b) regarding
the evidence required for combat veterans is not for
application.
Further, the Board finds that while service connection for
residuals of a right hand injury was previously denied in a
June 1974 letter, this does not constitute a prior final
decision requiring the presentation of new and material
evidence prior to reopening. See 38 C.F.R. § 3.156 (2003)
(requirement of submitting new and material evidence to
reopen a finally adjudicated claim). This was an
administrative denial based on the veteran's failure to
report for examination. The RO indicated that no further
action would be taken on the claim until it was informed of
the veteran's willingness to report for an examination.
There is no evidence that the letter to the veteran included
notification of his appellate rights, notwithstanding the
fact that the letter was returned as undeliverable. Because
notice was not provided the veteran of his right to appeal
the denial, no finality attaches to the letter from the RO,
and the claim has remained open. See 38 C.F.R. §§ 20.103(f);
20.104 (2003). As such, the Board may proceed with a
determination on the merits of the claim for residuals of a
right hand injury.
The Board finds that service connection is not warranted for
residuals of a right hand injury. Although the veteran has
claimed that he injured his hand when a hatch fell on hit,
necessitating a period in a cast, and reinjuring it again six
months later, necessitating another period in a cast, the
service medical records are silent as to any injury to the
hand in service with the exception of an abrasion to the
right hand in December 1967 when he was thrown from his
motorcycle. While there is a June 1963 record of X-ray
examination of the hand noted in service, there is no
accompanying treatment record and the X-ray examination
showed no abnormalities. Significantly, there was no
notation of injury to the right hand on examination at
separation from service, and examination of the upper
extremities was noted as "normal." The Board acknowledges
that there may have been some injury to the right hand in
service, as evidenced by the slides apparently showing the
veteran in a cast of his right hand; however, the medical
evidence consisting of the X-ray examination of the right
hand in service, and the report of examination at separation,
shows that if the veteran sustained injury to the right hand
in service it was acute and transitory and completely
resolved at the time of separation.
The veteran's postservice records are also negative for any
indication of a right hand injury for many years after
service. As late as July 1997, VA X-ray examination of the
right hand showed no evidence of bony or joint abnormalities.
The earliest postservice record of treatment for right hand
complaints is in April 2001 when the veteran complained of
numbness of the right fourth and fifth fingers for the past 2
months and the examiner noted that there was numbness of the
ulna nerve distribution. A diagnosis regarding the right
hand was not rendered until VA examination in September 2003
when X-ray examination showed a fracture of the right hand
through the neck of the fifth metacarpal. This was noted to
be of indeterminate age radiographically. This initial
diagnosis of a hand disorder is too remote from active
service over 35 years earlier to be causally linked.
Additionally, the competent medical evidence does not link
the veteran's right hand condition to active service. While
the examiner in the September 2003 examination gave an
opinion that the hand injury was more likely due to service-
connected injuries in service, this opinion was based
entirely on the history as reported by the veteran to the
examiner. A bare conclusion, even one reached by a medical
professional, is not probative without a factual predicate in
the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A
mere transcription of lay history, unenhanced by additional
comment by the transcriber, does not become competent medical
evidence merely because the transcriber is a medical
professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
The probative value of a physician's statement is dependent,
in part, upon the extent to which it reflects "clinical data
or other rationale to support his opinion." Bloom v. West,
12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet.
App. 177, 180 (1995). Here, as the physician based his
opinion solely upon history provided by the veteran (as
opposed to, e.g., a review of service medical records - to
which he did not have access), his opinion regarding the
possibility of a nexus between the veteran's right hand
condition and service is insufficient to establish nexus.
On reexamination of the veteran in December 2003, the
examiner made a diagnosis of status post fracture of the
right fifth metacarpal with subsequent degenerative changes.
The report of examination indicated that the military medical
records were carefully reviewed and based on this review, the
examiner was unable to establish a link between the current
diagnosis and active service, noting that injury in service
was not well documented in the medical records and "service
connection would be based solely on [the veteran's]
testimony."
The Board has considered the veteran's statements regarding
the etiology of his right hand disorder; however, this is not
competent evidence to show that his residuals of a right hand
injury were incurred in service. Competent lay evidence is
defined as any evidence not requiring that the proponent have
specialized education, training or experience. Lay evidence
is competent if it is provided by a person who has knowledge
of the facts or circumstances and conveys matters that can be
observed and described by a layperson. 38 C.F.R §
3.159(a)(1) (2003). Further, competent medical evidence is
defined as evidence provided by a person who is qualified
through education, training or experience to offer medical
diagnoses, statements or opinions. 38 C.F.R § 3.159(a)(2)
(2003). See also Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). It is not shown that the veteran possesses
the requisite medical training to comment on the diagnosis
and etiology of any injury to his right hand, to include the
diagnosed fracture of the fifth metacarpal of his right hand.
The preponderance of the evidence is against the claim for
service connection for residuals of a right hand injury.
Because there is no approximate balance of positive and
negative evidence, the rule affording the veteran the benefit
of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West
2002). See Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
See also 38 C.F.R. § 3.102 (2003).
B. Increased Initial Rating for Residuals of Left Elbow
Fracture
Legal Criteria
Service-connected disabilities are rated in accordance with
VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4
(2003) (Schedule), which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. Part 4 (2003). Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for the higher rating. 38
C.F.R. § 4.7 (2003). When after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability, such doubt will be
resolved in favor of the claimant. 38 C.F.R. § 4.3 (2003).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1 (2003);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim placed
in appellate status by disagreement with the initial rating
award and not yet ultimately resolved is an original claim as
opposed to a new claim for increase. Fenderson v. West, 12
Vet. App. 119, 126 (1999). In such cases, separate ratings
may be assigned for separate periods based on the facts
found, a practice known as "staged" ratings.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App.
202, 206-07 (1995). Painful, unstable, or malaligned joints,
due to healed injury, are entitled to at least the minimum
compensable rating for the joint. 38 C.F.R. § 4.59. The
factors involved in evaluating, and rating, disabilities of
the joints include weakness; fatigability; incoordination;
restricted or excess movement of the joint; or pain on
movement. 38 C.F.R. § 4.45.
Analysis
In the April 1996 rating decision, service connection was
granted for residuals of a left elbow fracture and a
noncompensable rating assigned. In January 2003, the rating
was increased to 10 percent disabling based on functional
loss from limitation of motion due to pain. The medical
records show that the veteran is right handed. Limitation of
motion of the elbow and forearm distinguish between rating
the major and minor extremities. All following citations are
for the minor extremity only. Diagnostic Code 5206 provides
for a 10 percent evaluation where limitation of flexion in
the forearm is at 100 degrees and a 20 percent evaluation
where flexion is limited to 90 degrees. 38 C.F.R. § 4.71a
(2003). Under Diagnostic Code 5207, a 10 percent evaluation
is warranted where extension is limited to 45 degrees, and a
20 percent evaluation is warranted where the extension is
limited to 60 degrees. (2003). On VA examination in July
1997, flexion was to 130 degrees. This range does not
support a compensable rating for limitation of flexion.
Extension is assumed to be full and without limitation. On
VA examination in October 2002, flexion was to 90 degrees,
and there was full range of motion of the wrist joints.
However, there was pain over the radial head when pressure
was applied when the forearm was rotated, and pain in the
elbow when extending the arm forcibly against resistance.
While the ranges of motion do not support an evaluation based
solely on limitation of flexion of the forearm, they do show
that there is pain on motion. Further, the normal range of
elbow flexion is from zero to 145 degrees. 38 C.F.R. § 4.71,
Plate I (2003). This exceeds the maximum of the veteran's
range of elbow flexion. As such, with demonstrable pain on
limitation of motion, the veteran is entitled to at least the
minimal compensable rating for the joint, in this case 10
percent. See 38 C.F.R. § 4.59. Further, he is appropriately
rated under Diagnostic Code 5206 as there is some limitation
of flexion shown, although it is not compensable under this
diagnostic code.
The Board has considered all other diagnostic codes relating
to the elbow and the forearm; however, the criteria are not
shown for evaluation under the diagnostic codes relating to
ankylosis of the elbow (Diagnostic Code 5205), nonunion or
impairment of the radius and ulna (Diagnostic Codes 5210,
5211, 5212), or impairment of supination or pronation
(Diagnostic Code 5213). The Board has also considered
evaluation under the diagnostic code for arthritis; however,
evaluation is not possible where there is no X-ray evidence
of degenerative changes (Diagnostic Code 5003).
The Board finds that the preponderance of the evidence is
against an initial evaluation in excess of 10 percent for
residuals of a left elbow fracture. In reaching this
decision, the Board has considered the complete history of
the disability in question as well as the current clinical
manifestations and the impact the disability may have on the
earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2;
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the
evidence for and against a higher evaluation is not evenly
balanced, the rule affording the veteran the benefit of the
doubt is not for application. 38 C.F.R. § 4.3.
ORDER
Service connection for a right hand condition is denied.
An increased initial rating for residuals of a left elbow
fracture is denied.
REMAND
The service medical records show that in April 1961 the
veteran slipped and fell when coming down a ladder and
hurting his lower back. The assessment was contusion to his
left hip. In April 1966, the veteran was thrown from his
motorcycle after hitting a hole while riding in the desert.
The assessment was possible left sacroiliac sprain. He was
hospitalized for one day, and noted to have an uneventful
recovery on discharge the following day. On examination at
separation in January 1968, the back was noted to be
"normal."
An October 1973 letter from Dr. D. Wilson, to the veteran's
employer, noted that the veteran had been referred for
evaluation of recurring complaints involving his back. The
veteran gave a history of a twisting injury of his back while
working on his machine in June 1973 resulting in his
hospitalization for a period of one week. The veteran denied
any previous history of low back difficulty. X-ray
examination of the lumbar spine failed to reveal any definite
bony abnormality. The assessment was chronic lumbar muscle
and ligamentous strain aggravated by work activity.
Private records of chiropractic treatment show that the
veteran sustained an injury to his back in April 1993
following an automobile accident when he was a passenger in a
vehicle that was struck from behind. The veteran indicated
that he had no complaints in the area of his back and neck
before the accident. A January 1994 letter shows numerous
diagnoses related to the back and neck, including thoracic
sprain with paravertebral splinting spasm, and lumbosacral
sprain.
In March 1994 the veteran's chiropractor, Dr. Wooten,
provided testimony in a deposition provided pursuant to a
personal injury claim by the veteran relating to the April
1993 automobile accident. He stated that radiologic evidence
of calcification along the thoracic vertebrae was indicative
of old injury prior to the accident which might not have been
symptomatic at the time of the accident, but could have been
aggravated by the accident.
In January 1995, the veteran was treated at VA for complaints
of pain in his right side. X-ray examination of the thoracic
spine noted degenerative disc disease. In December he was
treated for persistent muscle spasms in the right scapular
region. In April 1996, the veteran was again treated for
muscle spasms in the neck, back and hips. A CT scan of the
lumbar spine in June 1996 showed no abnormalities. On
referral to the orthopedic clinic, a consultation note shows
that the veteran had a history of back and neck pain for the
past two years. There were no neurological deficits noted.
In July 1997, the veteran was provided a VA examination of
the spine. The examiner reviewed the medical records and the
veteran's history and gave a diagnosis of degenerative joint
disease of the cervical and lumbar spine. There was no
etiology of the veteran's back discussed. VA outpatient
treatment records show treatment in April 2000 for lower back
pain with epidural injection.
In a September 2003 VA examination, the veteran related a
history of injury to his back in service when he fell off a
ladder. The veteran complained of back pain which he stated
began in 1962 during service. The examiner stated that in
his opinion, the lower back injury was more likely due to
service connected injuries in service. The examination was
returned as inadequate as there was no indication that the
medical records had been reviewed by the examiner, and the
opinion expressed was based solely on the history as reported
by the veteran. Additionally, there was no diagnosis of the
veteran's back disorder.
In November 2003, the veteran was examined again by VA. This
time, the medical records were reviewed and summarized in the
report of examination. X-ray examination showed that the
disc spacing was well maintained and the sacroiliac joints
appeared unremarkable. The examiner noted that apparently no
MRI had been performed to evaluate the soft tissues and the
possibility of disc protrusion. He indicated that this would
be recommended in view of the veteran's positive straight leg
raise on the right. The final diagnosis was as follows:
Chronic lumbosacral pain with possibility
of early disc disease, either at L4-L5 or
L5-S1. History of back and sacroiliac
injury [two times] while on active duty
documented in [the] medical records,
however, there is also documentation
showing a back injury of apparently a
more severe nature occurring from a motor
vehicle accident in 1993. This examiner
cannot accurately determine whether the
original injuries are a direct result of
his condition today or if the intervening
motor vehicle accident played a greater
role in [the] development of [the
veteran's] symptoms.
The Board is unable to determine from the above statement
whether there is any link between the veteran's current back
condition, and the injuries shown in service. The examiner
has stated that he cannot accurately determine whether the
"original injuries are a direct result of his condition
today." While this may be nothing more than a misstatement,
the Board is reluctant to infer the intent of the examiner
through revision of his opinion, particularly where doing so
would result in a denial of benefits to the veteran. As
such, this report should be returned to the examiner for
clarification. Additionally, the examiner has indicated that
no MRI had been performed to evaluate the soft tissues and
the possibility of disc protrusion. As such, diagnosis of
the veteran's back condition is incomplete. However, such
diagnosis may not be necessary if in the opinion of the
examiner it would not aid in establishing a link between his
current disability and the injuries in service. This a
medical question which should be referred to the examining
physician prior to scheduling the veteran for an MRI.
Accordingly, this case is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, D.C. for the
following action:
1. The RO must assure compliance with
the requirements of the VCAA. See 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.159, 3.326
(2003). The RO's attention is directed
to Quartuccio v. Principi, supra,
pertaining to the amended version of 38
U.S.C.A. § 5103(a), which requires that
the Secretary identify for the claimant
which evidence the VA will obtain and
which evidence the claimant is expected
to present. The RO should also inform
the veteran that he should submit any
evidence in his possession which pertains
to his claim See 38 C.F.R.
§ 3.159(b)(1).
2. The report of VA examination should
be returned to the examiner who conducted
the December 2003 VA spine compensation
and pension examination. The examiner
should review the report of examination
and the claims file, and restate his
opinion as to the following:
Is it at least as likely as not (at
least 50 percent probability) that
any currently diagnosed back
disorder is related to the injuries
shown in service?
All necessary testing should be
conducted, including scheduling the
veteran for an MRI if in the opinion of
the examiner such is necessary to
accurately answer the above question. If
the examiner is unable to answer the
above question, this should be clearly
stated. The claims file and a copy of
this remand must be made available for
review by the examiner prior to the
examination. The examiner should provide
complete rationale for all conclusions
reached.
3. Thereafter, the RO should
readjudicate the issue of entitlement to
service connection for back disorder with
consideration of all the evidence added
to the record since the Supplemental
Statement of the Case (SSOC) issued in
January 2004.
4. If the benefits requested on appeal
are not granted to the appellant's
satisfaction, the RO should issue an
SSOC, which must contain notice of all
relevant action taken on the claim, to
include a summary of all of the evidence
added to the record since the January
2004 SSOC. A reasonable period of time
for a response should be afforded.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
otherwise in order. No action is required of the veteran
until he is otherwise notified by the RO. By this action,
the Board intimates no opinion, legal or factual, as to any
ultimate disposition warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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